Biden Beats Trump: What’s Next for Immigration Law?

What are the consequences for immigration law of Joe Biden’s election as the 46th president of the United States?

The Trump administration’s legacy will have been to reduce legal immigration by up to 49% – without any change to the Immigration and Nationality Act but instead through hundreds of regulatory and sub-regulatory actions. The administration has strived, unsuccessfully, to end the Deferred Action for Childhood Arrivals (DACA) program. The administration turned its back on America’s historic humanitarian commitments to refugees and asylum seekers. With the excuse of “extreme vetting,” the administration has ground the legal immigration system to a standstill. And President Trump has used racism and xenophobia to poison the policy debate.

The Trump administration may still race to put into place additional immigration restrictions prior to Biden’s inauguration on Jan. 20. This includes:

• Implementing proposed rules to limit the period of stay for international students.
• Issuing a proposed rule to rescind employment authorization for spouses of H-1B professional workers.

Biden will unwind some of Trump’s policies. But unless Democrats win two runoff elections in Georgia, Biden may not have a Democratic majority in the Senate, making ambitious immigration legislation more challenging. Here is what Biden could try to do:

• Protect DACA, either through legislation or through administrative fixes.
• Fix the process that has forced tens of thousands of asylum seekers to live in squalid camps in Mexico by replacing it with an orderly process that protects human rights.
• Refuse to defend pending litigation opposing three Oct. 2020 Trump administration regulations restricting H-1B professional worker visas, or withdraw those regulations.
• Break the enormous backlog in adjudication of naturalization and immigration cases at USCIS and the State Department, returning cases to normal processing times.
• End the Muslim ban executive order.
• Reverse the Feb. 2020 public charge rule.

Many of these issues are discussed in Biden’s campaign website, but the initial version of his transition website does not yet address immigration issues.